TE BRAKE HC HAM CIV 2009-419-800

TE BRAKE HC HAM CIV 2009-419-800

The 12 September 2008 document operated as a codicil to the 1994 will and, although it did not comply with s11 formality language, the Court was satisfied under s14(2) that it expressed the deceased's testamentary intentions and that formalities had in substance been complied with; accordingly the document was declared valid and probate was granted.

Citation
openlaw-819e1432_f3ac_48ca_b66f_b2c6b3b2accf.pdf
Parties
Applicant/executor: Mr Donderwinkel; Deceased: Maria Hendrika Te Brake
Court
High Court
Jurisdiction
New Zealand
Judgment Date
21 August 2009
Procedural Posture
Probate and Will Validation / Application Under S14 Wills Act 2007 for Declaration of Validity of Document and Grant of Probate (on the Papers)
Outcome
Order under s14(2) Wills Act 2007 declaring the 12 September 2008 document valid; probate granted as sought to the named executor.
Legal Topics
Will Formalities, S14 Declaration, Codicil, Testamentary Intention
Wills and Estates Probate Will Formalities S14 Declaration Codicil Testamentary Intention

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Parties

Mr Donderwinkel

Applicant/executor

Maria Hendrika Te Brake

Deceased

Procedural Posture

Probate and Will Validation / Application Under S14 Wills Act 2007 for Declaration of Validity of Document and Grant of Probate (on the Papers)

Legal Issues

  1. 1 Whether the 12 September 2008 document, which did not comply with s11 witnessing formalities, could be declared valid under s14
  2. 2 Whether the 2008 document constituted a codicil to the 7 July 1994 will
  3. 3 Whether s14 applies to the 2008 document despite the principal will predating 1 November 2007

Ratio Decidendi

The 12 September 2008 document operated as a codicil to the 1994 will and, although it did not comply with s11 formality language, the Court was satisfied under s14(2) that it expressed the deceased's testamentary intentions and that formalities had in substance been complied with; accordingly the document was declared valid and probate was granted.

Court Disposition

Order under s14(2) Wills Act 2007 declaring the 12 September 2008 document valid; probate granted as sought to the named executor.

Orders

  • Declare the 12 September 2008 document valid under s14(2) Wills Act 2007.
  • Grant probate of the will as sought to Mr Donderwinkel, the executor.